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|Julian Hattem||November 26th 2013|
The Obama administration faces a tough task in convincing the Supreme Court to rule in favor of ObamaCare’s contraception mandate, according to legal experts. They say Chief Justice John Roberts’s court, which upheld the health law in a landmark 2012 decision, has generally set a high bar for limiting religious rights. In addition, Justice Anthony Kennedy, often the court’s swing vote, authored a 1993 decision that exempted a religious group from following laws it said were contradictory with its beliefs.
The Supreme Court announced on Tuesday that it would consider the case, possibly in its spring term. While Hobby Lobby and other businesses opposed to the mandate don’t have a slam dunk case, experts said it will be tough to convince the court that the federal government can order businesses to pay for contraception coverage that goes against their owners' religious beliefs.
“I think there’s a strong argument that the Religious Freedom Restoration Act, in this particular case, would allow Hobby Lobby to deny certain contraception coverage without having to pay the fine that would otherwise be imposed them under the Affordable Care Act,” said Kurt Lash, a constitutional law professor at the University of Illinois.
The 1993 Religious Freedom Restoration Act prevents the government from “substantially burden[ing] a person's exercise of religion” unless it “furthers a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
Hobby Lobby, a Christian-owned chain of arts and craft stores, and Conestoga Wood Specialties Corp., a cabinet company owned by Mennonites, argue that the law should prevent them from having to offer their employees contraception as part of their health insurance coverage. The two companies are citing the 1993 law to back their cases.
Kennedy wrote the 1993 decision that allowed a Florida Santeria group that performed animal sacrifices to do so despite a local ban on the practice. Under Roberts, the court unanimously ruled in 2006 that a Brazil-based religious sect could use an illegal hallucinogenic drug in their ceremonies, under the Religious Freedom Restoration Act. “We already know that there is a majority on the court that not only is willing to uphold and apply [the Religious Freedom Restoration Act] but who in the past has been very skeptical of the government denying claims when they’ve been giving other groups exemptions,” Lash said.
It is dangerous to predict the justices' decisions, however, and both of these cases dealt with religious institutions, not for-profit businesses. “The court just hasn’t dealt with this issue before,” said Douglas Laycock, a professor at the University of Virginia School of Law. “People who pull one sentence here or there from earlier things and say, ‘This is how they’re going to decide it,’ they’re just blowing smoke.” The Obama administration and supporters of the healthcare law argue that the religious rights of private business owners don’t extend to the for-profit companies they own. “The Supreme Court has held and courts have held repeatedly that advancing women’s health and women's’ equality is compelling and therefore it is overriding in these circumstances,” said Marcia Greenberger, co-president of the National Women’s Law Center, which supports the contraception provision.
There are other mitigating factors in the case, too. Some analysts have noted that a decision could be complicated by the politics surrounding the case. Roberts wrote the opinion upholding the health law, and close observers of the court interpreted his ruling as an effort to keep the court from being seen as a partisan institution. However, that decision could give Roberts more freedom to rule against the health law in this case.
Six of the nine justices on the court are Catholic, a statistic that could lead some to suspect a natural opposition to the birth control mandate. But that would be a narrow way to look at the issue according to Ira Lupu, a professor at George Washington University's law school. “Sonia Sotomayor is a Catholic,” he noted. “She is not so likely to vote for the businesses.”
“I am really, really kind of hostile to this kind of religious reductionism in the praising of what justices are likely to do.”
The other Catholic justices are Roberts, Kennedy, Clarence Thomas, Samuel Alito and Antonin Scalia.
According to James Blumstein, a law professor at Vanderbilt University, the court could allow some family-owned firms to be exempt from the mandate but still require larger corporations to comply. “I think it would be not surprising to find that certain kinds of corporations, where in fact there are substantially controlling interests, shall we say, that those kinds of entities do get the protection of the Religious Freedom Restoration Act,” he said.
Lupu said that the court is “highly likely to say a business can raise religious freedom rights.” Whether that means that the court will side with the businesses overall, though, “is another question,” he said. The real issue will be “whether that act of buying insurance that covers those kinds of services counts as facilitation of some act that people think is religiously wrong and whether that is a substantial burden.”
Julian Hattem writes for The Hill, from where this article is adapted.